Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23175/94

by G.W.

against Sweden

The European Commission of Human Rights sitting in private on

20 January 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of

Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 December 1993 by

G.W. against Sweden and registered on 4 January 1994 under file No.

23175/94;

Having regard to the report provided for in Rule 47 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of South Africa, born in 1966. Currently

he is staying in Stockholm. Before the Commission he is represented by

Mr. Leif Rydberg, a lawyer at Bergshamra.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

Particular circumstances of the case

The applicant entered Sweden on 29 September 1991. On

30 September 1991 he requested asylum. In his asylum request the

applicant claimed that on 7 September 1991 his parents had been murdered

in their home in Soweto by supporters of the rival political movement,

the Inkatha. The applicant tried to defend his parents by attacking one

of the supporters. The reason for the murder was allegedly that the

applicant's father had been an active member of the African National

Congress (hereinafter the "ANC"). Moreover, in 1991 the father had killed

two supporters of the Inkatha during violent clashes in Soweto.

In the asylum investigation the applicant stated that he himself had

not been politically active, but, as he had attacked a supporter of the

Inkatha in order to defend his parents, he could not go back to South

Africa for fear of being killed by the Inkatha. Allegedly, the Inkatha

supporters had returned to the house of the applicant's parents to look

for him soon after their murder.

On 11 February 1993 the National Immigration Board (statens

invandrarverk) rejected the asylum request and found no grounds for

granting the applicant a residence permit. The Board observed that

violence occurs between members of the ANC and the Inkatha, but noted

that the applicant himself had not been politically active within the

ANC. Thus, any action of revenge from the Inkatha would be highly

unlikely. Also, having regard to the time which had elapsed from the

alleged murder of his parents, the Board considered the applicant's fears

of persecution to be significantly exaggerated. Finally, the Board

considered that participation in fights between rival groups was not

normally a reason for granting asylum.

The applicant appealed to the Aliens Appeals Board (utlännings-

nämnden), submitting that traditionally a son is considered to belong to

the same organisation as his father. As a son is obliged to take revenge

for the murder of his father, the Inkatha supporters will also wish to

kill the applicant. The South African authorities allegedly support or

tolerate violent actions by the Inkatha against ANC members.

The applicant's appeal was rejected on 8 July 1993. The Board

considered that the fact that the applicant did not request asylum

immediately upon his arrival in Sweden affected the credibility of his

alleged reasons for seeking asylum. Moreover, the applicant had entered

Sweden using someone else's passport which he had destroyed after passing

the passport control. As the applicant had not himself been politically

active and in view of the time which had elapsed from the alleged murder

of his parents, the applicant's fears of being persecuted on his return

to South Africa were considered significantly exaggerated.

According to a psychiatric report of 1 October 1993, the applicant

is suffering from insomnia, nightmares, anxiety, anorexia,

hallucinations, paranoia, depression and suicidal thoughts. He was

considered to be in need of psychiatric care in an institution, but has

not consented to this "for fear of the police." The report concludes

that, should the applicant's expulsion be enforced, he might attempt to

commit suicide.

Relevant domestic law

Under Chapter 2, Section 5, subsection 3, of the Aliens Act

(utlänningslag 1989:529), a request for a residence permit, lodged by an

alien who is to be refused entry or expelled by a decision which has

acquired legal force, may only be granted provided the request is based

on new circumstances and the applicant is either entitled to asylum or

there are weighty humanitarian reasons for allowing him to stay in

Sweden.

An alien who has been refused entry or who is to be expelled may

never be conveyed to a country where there is firm reason to believe that

he would be in danger of being subjected to capital or corporal

punishment or torture, or to a country where he is not protected from

being sent to a country where he would be in such danger (Chapter 8,

Section 1).

When a refusal of entry or an expulsion order is put into effect,

the alien may, in principle, not be sent to a country where he would risk

being persecuted, or to a country where he would not be protected from

being sent on to a country where he would risk being persecuted (Chapter

8, Section 2, subsection 1). The exceptions to this rule are not relevant

in the present case.

If the enforcement is not subject to any obstacles under, inter

alia, Chapter 8, Sections 1 and 2, an alien who has been refused entry,

or who is to be expelled, is to be sent to his country of origin or, if

possible, to the country from which he came to Sweden. If the decision

cannot be put into effect in the manner indicated in subsection 1, or

there are other special grounds for doing so, the alien may be sent to

some other country instead (Chapter 8, Section 5).

When considering a request for a residence permit lodged by an alien

to be expelled according to a decision which has acquired legal force,

the National Board of Immigration (and in certain cases the Government

too) may stay execution of that decision. For particular reasons, the

Board may also otherwise stay execution (Chapter 8, Section 10).

If the enforcing authority finds that enforcement cannot be carried

out or that further information is needed, the authority is to notify the

National Board of Immigration accordingly. In such a case, the Board may

decide on the question of enforcement or take such other measures as are

necessary (Chapter 8, Section 13).

COMPLAINTS

The applicant complains of his imminent expulsion to South Africa,

where he fears being persecuted by supporters of the Inkatha. He submits

that he was a member of the ANC and participated in demonstrations

against the Inkatha. Allegedly, his father had hidden weapons to be used

against the Inkatha without ever informing the applicant of their hiding-

place. The Inkatha supporters, however, are said to believe that the

applicant is aware of the arms cache and will therefore attempt to

extract information about it if they find him.

The applicant further refers to his present mental state as an

obstacle to his expulsion.

No particular provision of the Convention is invoked.

THE LAW

The applicant complains of his imminent expulsion to South Africa,

where he fears persecution from supporters of the Inkatha. He further

refers to his present mental state as an obstacle to his expulsion.

The Commission has examined the application under Article 3

(Art. 3) of the Convention, which reads as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission recalls that Contracting States have the right to

control the entry, residence and expulsion of aliens. The right to

political asylum is not protected in either the Convention or its

Protocols (Eur. Court H.R., Vilvarajah and Others judgment of

30 October 1991, Series A no. 215, p. 34, para. 102).

However, expulsion by a Contracting State of an asylum seeker may

give rise to an issue under Article 3 (Art. 3) of the Convention, and

hence engage the responsibility of that State under the Convention, where

substantial grounds have been shown for believing that the person

concerned would face a real risk of being subjected to torture or to

inhuman or degrading treatment or punishment in the country to which he

is to be expelled (ibid., para. 103). A mere possibility of ill-treatment

is not in itself sufficient to give rise to a breach of Article 3

(Art. 3) (ibid., p. 37, para. 111).

Turning to the present case and notably to the applicant's fears of

persecution by Inkatha supporters, the Commission observes that the

applicant's present submissions are inconsistent with those previously

made before the Swedish authorities. For instance, in the asylum

investigation he stated that he had never been politically active,

whereas before the Commission he claims to have been an ANC member and

to have participated in demonstrations. Moreover, before the Swedish

authorities he never referred to the risk he now describes to the

Commission of Inkatha supporters attempting to extract information from

him about his father's arms cache. These inconsistencies affect the

credibility of the applicant's submissions to the Commission.

In these circumstances the Commission cannot find that substantial

grounds have been established for believing that the applicant would, on

account of his background, be exposed to a real risk of being subjected

to treatment contrary to Article 3 (Art. 3) of the Convention on his

return to South Africa.

As regards the applicant's mental state, the question could be

raised whether, having regard to the psychiatric report of 1 October

1993, the applicant's expulsion would involve such a trauma for him that

it could amount to a violation of Article 3 (Art. 3) of the Convention

(cf. Eur. Court H.R., Cruz Varas and others judgment of 20 March 1991,

Series A no. 201, p. 31, paras. 83-84).

The Commission notes, however, that under Swedish law a further

request for asylum or a residence permit may be lodged with reference to

new circumstances (cf. No. 20547/92, Dec. 15.2.93, unpublished). However,

the psychiatric report has not been invoked by the applicant in support

of such a request.

In these circumstances, the application must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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G.W. v. SWEDEN

G.W. v. SWEDEN

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